Kravetz v. Lipofsky

Citation294 Mass. 80,200 N.E. 865
PartiesKRAVETZ v. LIPOFSKY.
Decision Date01 April 1936
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Macleod, Judge.

Petition by Philip Kravetz against Celia Lipofsky to vacate judgment. The petition was denied. On petitioner's exceptions.

Exceptions overruled.Cryan, Shaw & Bradley and E. P. Shaw, all of Boston, for petitioner.

D. Korisky, Holtz & Rose, and F. L. Hurwitz, all of Boston, for respondent.

RUGG, Chief Justice.

This is a petition to vacate the judgment entered in the Superior Court in an action of tort wherein the present respondent was plaintiff and the present petitioner was defendant. That cause of action arose from personal injuries alleged to have been received by the plaintiff while lawfully upon the defendant's premises by reason of their unsafe condition. The petition was denied. The case comes before us on a bill of exceptions which contains all the material evidence. The petitioner filed requests for rulings upon which the trial judge took no action. No finding of facts was filed by the trial judge.

The original papers and docket entries in the earlier case show these facts: No trial of the original action was had on its merits. That action was entered in June, 1932; the defendant appeared, answered, and claimed trial by jury through his attorney, a member of the bar; on September 25, 1934, the defendant was defaulted and two days later a motion to remove the default was filed; on December 15, 1934, the plaintiff filed a motion to dismiss the motion to remove the default and marked both it and the motion of the defendant for hearing on December 24, 1934, due notice of which was sent to the attorney for the defendant; on the latter date the motion of the defendant was denied and that of the plaintiff granted. In January, 1935, damages after default were assessed and the action went to judgment. That judgment has not been satisfied in whole or in part.

The respondent's counsel agreed that in the original action there was a disputed issue of fact, or of fact and law, or of law, which would have been proper for determination in the orderly processes of trial. The trial judge ruled that that phase of the petition was established. Lovell v. Lovell, 276 Mass. 10, 176 N.E. 210;Dondis v. Lash, 277 Mass. 477, 482, 178 N.E. 624;Russell v. Foley, 278 Mass. 145, 148, 179 N.E. 619;Maki v. New York, New Haven & Hartford R. Co. (Mass.) 199 N.E. 760.

The substance of other evidence was as follows: The original defendant, being the present petitioner, testified that he co-operated with his attorney in preparation of his defence to that action and that he had never gone to court on it and had not known of the judgment against him until about two weeks before, which was about January 28, 1935. The wife of the petitioner testified that the plaintiff in that action on the date of her alleged injury had come with several other women to visit her. There was evidence by the attorney for the defendant in the original action to this effect: In September, 1934, when the case had been pending on the trial list for several years, he received ‘the usual notice from the’ clerk of courts; on the day of the default he was at a hearing at the State House and did not know that the case was to be called that day; after filing a motion on September 27, 1934, to remove the default, supported by affidavit, he did not mark it for hearing or do anything about it, and he heard nothing concerning the case until he received notice on December 26, 1934, that that motion had been denied; he took no action when he learned of this fact; in November and December, 1934, he had been sick and able to work about ten days in those months; he received on Saturday, January 5, 1935, a trial list showing that the case was on the list for assessment of damages on January 7, 1935; he dictated a letter to the clerk of courts stating that he was ill and asking for a continuance; this original letter, postmarked at eleven a. m. on January 7, 1935, and with notation that it had been received at three thirty-five p. m. on the same day, was in evidence; damages had been assessed at ten thirty-five a. m. on that day; he had received all usual notices but had not received notice of the marking of the motions by the plaintiff or copy of the plaintiff's motion; he knew that there was a rule or order that all cases of default at the general calling of the list should be heard on or about October 17, 1934; he did not know when the case went to judgment, was sick from January 7 to January 24, 1935, and neither knew nor did anything about the case. The trial judge took judicial notice that the official calling of the docket was ordered on September 4, 1934, to be commenced on or about September 17, 1934, and that on or about October 5, 1934, an order was made ‘as to non-suited and defaulted cases to be heard in the week beginning’ October 17, 1934. The foregoing is the substance of all the facts and evidence before the trial judge.

A petition to vacate a judgment is addressed largely though not exclusively to the discretion of the trial judge. That discretion should be exercised so as to promote an orderly administration of law and not to encourage carelessness, ignorance, or laxity in practice. Such petitions should be allowed sparingly and only in aid of justice, and not to relieve against slovenly conduct not dictated by fidelity to the courts and intelligent loyalty to clients. Commonly they ought not to be granted when the petitioner's cause of complaint grows out of the negligence or misconduct of his attorney, but such an aggrieved person should be left to seek his remedy against the one responsible for the wrong; this is the general although not the inflexible rule. The refusal to grant such a petition ordinarily presents no question of law. Rollins v. Bay View Auto Parts Co., 239 Mass. 414, 423, 424, 132 N.E. 177;Ryan v. Hickey, 240 Mass. 46, 132 N.E. 718;Silverstein v. Daniel Russell Boiler Works, Inc., 268 Mass. 424, 426, 167 N.E. 676;Beserosky v. Mason, 269 Mass. 325, 168 N.E. 726;Alpert v. Mercury Publishing Co., 272 Mass. 43, 45, 172 N.E. 223;Manzi v. Carlson, 278 Mass. 267, 273, 180 N.E. 134;Sweeney v. Morey & Co., Inc., 279 Mass. 495, 498, 181 N.E. 782;Robinson v. Lyndonville Creamery Association, 284 Mass. 396, 399, 188 N.E. 248;Hopkinton v. B. F. Sturtevant Co., 285 Mass. 272, 189 N.E. 107;Oliver v. Brazil, 288 Mass. 252, 192 N.E. 486;Hunt v. Simester, 223 Mass. 489, 492, 112 N.E. 76. The exercise of sound judicial discretion imports the invocation by a clear and trained mind of reason, courage, impartiality and conscience to accomplish in a calm spirit a result in conformity to law and just and equitable to all parties. Davis v. Boston Elevated R. Co., 235 Mass. 482, 496, 497, 126 N.E. 841;Universal Adjustment Corporation v. Midland Bank, Ltd., of London, 281 Mass. 303, 316, 184 N.E. 152, 87 A.L.R. 1407;Commonwealth...

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24 cases
  • Sprung v. Negwer Materials, Inc.
    • United States
    • Missouri Supreme Court
    • 14 avril 1987
    ... ... 693 (La.Ct.App.1939); MAINE: Cutillo v. Gerstel, 477 A.2d 750 (Me.1984); Maiorino v. Morris, 367 A.2d 1038 (Me.1977); MASSACHUSETTS: Kravetz v. Lipofsky, 294 Mass. 80, 200 N.E. 865 (1936); MICHIGAN: Seifert v. Keating, 344 Mich. 456, 73 N.W.2d 894 (1955); Federspiel v. Bourassa, 151 ... ...
  • Hyde Park Sav. Bank v. Davankoskas
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 6 novembre 1937
    ... ... Lovell v. Lovell, 276 Mass. 10, 11, 12, 176 N.E. 210;Russell v. Foley, 278 Mass. 145, 148, 179 N.E. 619;Kravetz v. Lipofsky (Mass.) 200 N.E. 865;Frechette v. Thibodeau (Mass.) 200 N.E. 538. But caution must be used lest the negligent be rewarded to the ... ...
  • Hyde Park Sav. Bank v. Davankoskas
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 6 novembre 1937
    ... ... of a hearing. Lovell v. Lovell, 276 Mass. 10, 11, ... 12. Russell v. Foley, 278 Mass. 145 , 148 ... Kravetz v. Lipofsky, 294 Mass. 80, 81. Frechette ... v. Thibodeau, 294 Mass. 51 , 54. But caution must be ... used lest the negligent be rewarded to the ... ...
  • Long v. George
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 5 mars 1937
    ... ... Munde v. Lambie, 125 Mass. 367;Russell v. Foley, 278 Mass. 145, 179 N.E. 619;Commonwealth v. Millen, 290 Mass. 406, 195 N.E. 541;Kravetz v. Lepofsky (Mass.) 200 N.E. 865. And error in ruling that no discretion exists is an error of law which may be reviewed on exception. Commonwealth ... Daniel Russell Boiler Works, Inc., 268 Mass. 424, 167 N.E. 676;Nicholas v. Lewis Furniture Co. (Mass.) 198 N.E. 753;Kravetz v. Lipofsky (Mass.) 200 N.E. 865. The delay of five years by the defendant in seeing that the record of the District Court stated correctly judicial action ... ...
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